Opinion
No. E2000-00806-CCA-R3-PC.
Filed March 22, 2001. Assigned on Briefs January 23, 2001.
Direct Appeal from the Criminal Court for Hamblen County No. 99CR035 James E. Beckner, Judge
Affirmed.
William H. Bell, Greeneville, Tennessee, for the appellant, James Perry Hyde.
Paul G. Summers, Attorney General Reporter; R. Stephen Jobe, Assistant Attorney General; and Eric Christiansen, Assistant District Attorney, for the appellee, State of Tennessee.
Gary R. Wade, P.J., delivered the opinion of the court, in which Joseph M. Tipton and Norma McGee Ogle, JJ., joined.
OPINION
On June 29, 1993, the petitioner was convicted of rape of a child, a Class A felony. See Tenn. Code Ann. § 39-13-522(b). The trial court imposed a 25-year sentence. The conviction was based upon evidence that the petitioner had inserted an enema device filled with cough syrup into the rectum of his 11-year-old daughter. The victim refused to testify and the conviction was based in great measure upon an admission by the petitioner to an investigator with the district attorney general's office:
[The petitioner] told me that on September 14, 1992, that he could remember having [the victim] take off her clothes. He said he then remembered giving [the victim] an enema with some cough syrup and he placed it in her rectum. He told me he loved [the victim] very much. [He] [s]aid, I can't remember anything else that happened. I remember it happening upstairs in the bathroom. This happened in the morning hours after [my wife] went to work. I don't know why I did this. . . . I am giving the statement to get it off my conscience and to help [the victim].
This court affirmed on direct appeal. State v. James Perry Hyde, No. 03C01-9401-CR-00010 (Tenn.Crim.App., at Knoxville, July 31, 1996). Application for permission to appeal was denied March 2, 1998, by the supreme court, concurring in results only.
On February 19, 1999, the petitioner filed this petition for post-conviction relief, alleging that he was denied effective assistance of counsel at trial. Prior to the evidentiary hearing, the trial court ordered an examination of the petitioner and confirmed his competency to stand trial. During the evidentiary hearing, trial counsel testified that he met with the petitioner over 50 times, interviewed at least 30 witnesses, filed several pre-trial motions, and examined the medical records of the petitioner.
Trial counsel conceded, however, that he did not request a competency examination of the petitioner or determine whether the petitioner, due to his medical or psychological infirmities, could make a knowing and voluntary statement to police. Trial counsel also testified that he interviewed the victim prior to trial and made a strategic decision not to call her as a defense witness. During the state's proof in chief, the victim was asked a series of very simple questions. She refused to talk and left the courtroom. At the conclusion of the state's proof, the trial court dismissed two other rape charges. Trial counsel explained that his investigation revealed that the victim might testify to other incidents of sexual impropriety on the part of the petitioner.
Trial counsel acknowledged that the victim later signed a sworn recantation, and that even later she recanted her recantation under oath. He also testified that he reviewed the physical evidence the state sought to present, including the cough syrup and the enema bags. Trial counsel testified that in his opinion the petitioner was competent and that an insanity defense was not a viable alternative because the petitioner contended that the incident simply did not occur. Finally, there was an indication that the petitioner had difficulty telling the truth under stress. Upon questioning, trial counsel testified that he considered putting on proof to that effect. He chose, however, not to use such evidence, fearing that the jury might misinterpret the petitioner's plan to testify at trial that he was innocent of the crime.
Dr. Richard J. Munson, a psychologist, testified that in his opinion the petitioner was competent to stand trial at the time the case was heard. It was also his opinion that the petitioner did not have any reason to enter an insanity plea at the time of the trial.
The victim, 19 years of age at the time she testified at the evidentiary hearing, recalled the event that led to the charges and then recalled having made a statement of recantation on May 14, 1999:
When they put me in Lake Shore, they had me on all these kinds of medicines . . . . So, they put ideas in my head . . . and one day I just blurted it out, . . . "Well, he sexually abused me." But, he really didn't and I was just really messed up at the time.
The victim admitted having made a recorded statement to the petitioner well after the trial that her allegations of sexual misconduct were untrue. She then testified that the statement of recantation that she had made to the petitioner was untrue. The victim stated that what she had told the doctors before the charges were made against the petitioner was the truth. She explained that she had felt pressure to recant her accusations against her father because she lived with her grandmother at the time and needed to stay there.
The petitioner conceded at the evidentiary hearing that despite warnings by his trial counsel not to talk to anyone, he made incriminating pre-trial statements to employees of the Department of Human Services. Otherwise, he had no complaints about the investigation.
Edith Hyde, the petitioner's mother, testified on the petitioner's behalf. She denied having pressured the victim to recant her accusations.
At the conclusion of the evidentiary hearing, the trial court complimented trial counsel for the effort he had made on behalf of the petitioner:
[T]he record clearly shows that all appropriate objections were made, and a vigorous defense was conducted in behalf of the petitioner . . . [Trial counsel] carefully considered the mental and physical conditions of the petitioner. He made an evaluation of whether he was able to stand trial based on his vast experience as a criminal defense lawyer.
The trial court found no deficiency or prejudice due to the failure to seek a psychological determination of the petitioner's competency. The trial court classified counsel's decision not to call the victim as a witness as sound trial strategy: "It was dangerous; it was a time bomb; it would have been a disaster."
When a petitioner seeks post-conviction relief on the basis of ineffective assistance of counsel, he must first establish that the services rendered or the advice given were below "the range of competence demanded of attorneys in criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Second, he must show that the deficiencies "actually had an adverse effect on the defense."Strickland v. Washington, 466 U.S. 668, 693 (1984). Should the petitioner fail to establish either factor, he is not entitled to relief. Our supreme court described the standard of review as follows:
Because a petitioner must establish both prongs of the test, a failure to prove either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim. Indeed, a court need not address the components in any particular order or even address both if the defendant makes an insufficient showing of one component.
Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). On claims of ineffective assistance of counsel, the petitioner is not entitled to the benefit of hindsight, may not second-guess a reasonably based trial strategy, and cannot criticize a sound, but unsuccessful, tactical decision made during the course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn.Crim.App. 1994). Such deference to the tactical decisions of counsel, however, applies only if the choices are made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.Crim.App. 1992).
Under our statutory law, the petitioner bears the burden of proving his allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). On appeal, the findings of fact made by the trial court are conclusive and will not be disturbed unless the evidence contained in the record preponderates against them.Brooks v. State, 756 S.W.2d 288, 289 (Tenn.Crim.App. 1988). The burden is on the petitioner to show that the evidence preponderated against those findings. Clenny v. State, 576 S.W.2d 12, 14 (Tenn.Crim.App. 1978).
It is our assessment that the petitioner was not denied the effective assistance of counsel. The trial court accredited counsel's determination that the need for a mental evaluation was not apparent from the pre-trial behavior of the petitioner. Proof from a mental health expert that the petitioner would have had difficulty telling the truth under stress, if that had been the result of the examination, would have served as a "double-edged sword," explaining perhaps the "untruthful" incriminating comments he had made pre-trial but contradicting his "truthful" trial testimony that he was innocent of the crime. That would have been a dangerous strategy indeed. Calling the victim, who had just refused to incriminate the petitioner, as a witness would have been an even greater risk. While the potential gain would have been minimal, the potential loss would have been great. In our view, it was sound trial strategy not to call the victim, especially where her testimony might have intimated that the petitioner was involved in other criminal acts, either those which had never been charged or those which had been dismissed by the trial court at the conclusion of the state's proof. Finally, trial counsel was able to effectively attack the credibility of the allegations made by the victim by establishing that the victim had falsely accused others of sexual abuse. Under those circumstances, in particular, the strategy adopted by the defense met professional guidelines. There was no deficiency in performance.
Accordingly, the judgment is affirmed.
I am unable to join with my colleagues in concluding that "restoration of citizenship rights" to a felon convicted of a crime of violence restores to the felon his right to possess a handgun. My reasons are twofold.
First, the right to keep and bear arms is not absolute.
The constitutional right to bear arms provided in the United States Constitution means no more than this right shall not be infringed by Congress. See 79 Am. Jur.2d Weapons and Firearms § 4 (1975). The guaranty of the federal right to bear arms is not carried over into the Fourteenth Amendment so as to be applicable to the individual states. 79 Am. Jur.2d Weapons and Firearms § 4. Additionally, the United States Supreme Court has long held that "the Second Amendment guarantees no right to keep and bear a firearm that does not have 'some reasonable relationship to the preservation or efficiency of a well regulated militia.'" Lewis v. United States, 445 U.S. 55, 65 n. 8, 100 S.Ct. 915 (1980) (citation omitted). In this regard, the federal courts have consistently upheld the constitutionality of federal weapons regulations like 18 U.S.C. § 922(g) absent evidence that they in any way affect the maintenance of a well regulated militia.
That the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime.
Tenn. Const. art. I, § 26 (emphasis added). In furtherance of this objective and with a purpose toward preventing conduct that unjustifiably and inexcusably threatens harm to the public interest, our General Assembly enacted the following statute:
A person commits an offense who possesses a handgun and:
(A) Has been convicted of a felony involving the use or attempted use of force, violence or a deadly weapon; or
(B) Has been convicted of a felony drug offense.
Tenn. Code Ann. § 39-17-1307(b)(1) (1997) (emphasis added).
The Appellant asserts as a defense to his possession of the handgun that, because his "citizenship rights" were restored pursuant to Tenn. Code Ann. §§ 40-29-101 through 40-29-105 (1997 2000 Supp.), he is not subject to prosecution under Tenn. Code Ann. § 39-17-1307 (b)(1)(A). I find this reasoning misplaced. Under our current penal code, the only defenses which may be raised, in addition to those defenses expressly designated in Tenn. Code Ann. §§ 39-11-501 through 39-11-621 (1997), are those defenses so labeled and designated within the weapons provisions of Title 39. See Tenn. Code Ann. § 39-11-203(e)(1) ((1997); see generally State v. Culp, 900 S.W.2d 707, 710 (Tenn.Crim.App. 1994) (only statutory defenses available). Restoration of citizenship rights is not a designated defense to prosecution under Tenn. Code Ann. § 39-17-1307(b)(1). See generally Tenn. Code Ann. § 39-17-1308(a)(1 through 10) (2000 Supp.) (establishing defenses for certain persons in the scope of their employment and for other lawful behavior). Moreover, the defenses to Tenn. Code Ann. § 39-17-1307 enumerated in Section 1308(a) are expressly unavailable to a person prosecuted under Section 1307(b)(1)(felon convicted of crime of violence). See Tenn. Code Ann. § 39-17-1309(b). As such, I find that "restoration of citizenship" is not a defense to Tenn. Code Ann. § 39-17-1307.
Second, the majority concludes that the Appellant "regained his constitutional right to possess a handgun within his residence due to the restoration of his full rights of citizenship." The only rights which may be restored to the convicted felon are those rights which were removed by virtue of being rendered infamous. Loss of the right to possess a handgun is not a right of citizenship removed due to a felony conviction.
In reaching this conclusion, the majority relies, in large part, upon dicta in our supreme court's opinion in Cole v. Campbell, 968 S.W.2d 274, 276 (Tenn. 1998), which involved the right of a convicted felon to seek public records under the Public Records Act.
Historically, I would acknowledge that, prior to 1986, federal law prohibited all ex-felons from carrying a firearm or ammunition. See United States v. Eaton, 859 F. Supp. 421, 423 (D.Mont. 1993) (citing David T. Hardy, The Firearm Owners' Protection Act: A Historical and Legal Perspective, 17 Cumb.L.R. 585 (1987)) (emphasis added). States were not permitted to exempt their citizens from this law. Eaton, 859 F. Supp. at 423 (citingDickerson v. New Banner Institute, Inc., 460 U.S. 103, 111-120, 103 S.Ct. 986, 991-996 (1983)). In response to Dickerson, the Firearm Owners Protection Act, effective November 15, 1986, was enacted to permit states to exempt, if they so chose, their convicted felons from firearms disabilities. Eaton, 859 F. Supp. at 424 (citing United States v. Cassidy, 899 F.2d 543, 546-49 (6th Cir. 1990) (showing "FOPA's deference to state law with respect to the federal firearms privileges of persons convicted in that state")). One of the purposes of the Firearm Owners Protection Act, therefore, was to empower the states vis-a-vis the federal government with regard to their own felons. Eaton, 859 F. Supp. at 425 (citing United States v. Essick, 935 F.2d 28, 31 (4th Cir. 1991)). In other words, the individual states may now restore the right, to the extent the individual state finds appropriate, of a convicted felon to possess a firearm.
"Upon conviction for any felony," a defendant shall be rendered infamous and "be immediately disqualified from exercising the right of suffrage," the right to hold public office, and the right to "execute the office of executor, administrator or guardian." See Tenn. Code Ann. §§ 40-20-112; 40-20-114; 40-20-115 (1997). Persons rendered infamous or deprived of the rights of citizenship may have their full rights of citizenship restored upon a petition to the circuit court. See Tenn. Code Ann. §§ 40-29-101 through 40-29-105 (1997 2000 Supp.); see, e.g., Tenn. Code Ann. § 40-29-105 (restoration of right to vote); Tenn. Code Ann. § 40-20-114 (1997) (restoration of right to hold office). The restoration process relieves a defendant of an impediment to his speedy and effective re-assimilation as a useful member of society. Notwithstanding, the removal of the legal restrictions resulting from a felony conviction does not erase the prior conviction for all purposes. In particular, the restoration of civil rights does not reestablish the absolute right of a felon to possess a handgun. See generally Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 103 S.Ct. 986 (1983).
The "rights of citizenship" are dictated by statute and have been customarily limited to the right to vote, the right to serve on a jury, and the right to hold public office. See, e.g.,United States v. Meeks, 987 F.2d 575, 578 (9th Cir.), cert. denied, 510 U.S. 919, 114 S.Ct. 314 (1993); Cassidy, 899 F.2d at 549; Barry v. State, 925 P.2d 255 (Ala. App. 1996); State v. Donnis Derouin, No. 00-01150-KA (La.App. Jan. 31, 2001) (citingState v. Selmon, 343 So.2d 720 (La. 1977); State v. Amos, 343 So.2d 166 (La. 1977)).
It should be noted that Tenn. Code Ann. § 40-29-105(b)(2) provides that certain felons shall never be eligible to vote in Tennessee; those convicted of first degree murder, aggravated rape, treason or voter fraud.
In determining whether an individual, by virtue of a prior felony conviction, is subject to any restrictions governing the possession of firearms, the court should first look to whether the individual's citizenship rights have been restored. See generally United States v. White, 808 F. Supp. 586, 587 (M.D.Tenn. 1992). If the statutorily enumerated "civil rights," have been restored pursuant to applicable statutory provisions, the next inquiry focuses upon whether the state has expressly limited the felon's firearms privileges. Id. In performing this review, the court must look not only to the certificate restoring the felon's rights but also to the state law in its entirety. See Cassidy, 899 F.2d at 548-549; see also White, 808 F. Supp. at 587. This survey must entail consideration of the legislature's directives regarding weapons possession, specifically focusing upon whether there is a limitation on a felon's firearms privilege. Cassidy, 899 F.2d at 546; White, 808 F. Supp. at 587. If there is any limitation on the felon's right to possess any type of firearm because of his conviction, that limitation controls irrespective of the reinstatement of his "civil rights." Cf. Cassidy, 899 F.2d at 546; White, 808 F. Supp. at 587.
The primary role of a reviewing court is to ascertain and give effect to the legislative intent without unduly restricting or expanding the statute's coverage beyond its intended scope. See Roseman v. Roseman, 890 S.W.2d 27, 29 (Tenn. 1994) (citations omitted). If the legislative intent is unclear from the face of the questioned statute, those statutes relating to the same subject matter, or in pari materia, must be construed together, the language of some provisions aiding the interpretation of the other, and viewing the statutes as a whole consistent with their legislative purpose. State v. Blouvett, 904 S.W.2d 111, 113 (Tenn. 1995); Lyons v. Rasar, 872 S.W.2d 895, 897 (Tenn. 1994); Laney v. State, 826 S.W.2d 117, 118 (Tenn. 1992). Cf.Cassidy, 899 F.2d at 545 n. 5 (an express restriction on firearms privileges need not be contained in the statutory provision or the certificate which restores civil rights).
It must be emphasized that inherent within this state's regulations of weapons is the principle that the right to bear arms is not unlimited, rather, it is restricted with specific limitations. The limitations and restrictions on firearm possession and the accompanying exceptions are set forth in our code as substantive criminal offenses. See Tenn. Code Ann. §§ 39-17-1302 (prohibited weapons); 39-17-1304(restrictions on firearm ammunition); 39-17-1305 (prohibited possession of firearms where alcoholic beverages are served); 39-17-1306 (prohibited carrying of firearm during judicial proceeding); 39-17-1307 (unlawful possession of a weapon); 39-17-1309 (carrying of weapons on school property); 39-17-1311 (carrying weapon on public parks, playgrounds, etc.); and 39-17-1316 (sales of dangerous weapons). Of particular import in the present case is Tenn. Code Ann. § 39-17-1307, which, in addition to other proscriptions, prohibits persons convicted of felony drug offenses and crimes involving violence from possessing a handgun. This proscription is repeated in other provisions of the chapter, namely the requirements enumerated in Tenn. Code Ann. § 39-17-1351 for obtaining a handgun carry permit. To be eligible for a handgun carry permit, "the applicant [must] not [have] been convicted of a criminal offense for a term exceeding one (1) year. . . ." Tenn. Code Ann. § 39-17-1351(c)(6). The statute additionally provides, however, that the application shall not be denied if
For example, with the exception of certain enumerated defenses, all persons are prohibited from possessing, in the State of Tennessee, any "explosive weapon," any device designed to shoot an "explosive weapon," a machine gun, a short-barrel rifle or shotgun, a firearm silencer, a switchblade knife or knuckles, and "any other implement for infliction of serious bodily injury or death which has no common lawful purpose." Tenn. Code Ann. § 39-17-1302(a).
Additionally, it is unlawful to sell a firearm to a person convicted of a felony, unless the ex-felon has either "been pardoned for the offense;" "the conviction has been expunged," or "the person's civil rights have been restored pursuant to title 40, chapter 29;" and "the person is not prohibited from possessing a firearm by the provisions of § 39-17-1307." Tenn. Code Ann. § 39-17-1316.
(1) the existence of any arrest or other records concerning the applicant for any indictment, charge or warrant have been judicially or administratively expunged; or
(2) an applicant's conviction has been set aside by a court of competent jurisdiction; or
(3) the applicant, who was rendered infamous or deprived of the rights of citizenship by judgment of any state or federal court, has had his or her full rights of citizenship duly restored pursuant to procedures set forth within title 40, chapter 29, or other federal or state law; provided, however, the provisions of this subdivision shall not apply to any person who has been convicted of burglary, any felony offense involving violence or use of a firearm or any felony drug offense involving a Schedule I, II, III, IV, or V controlled substance. . . ."
Tenn. Code Ann. § 39-17-1351 (emphasis added).
I interpret Tennessee law to restore only the right to vote and the right to seek and hold public office. See Tenn. Code Ann. § 40-29-105 (restoration of the right to vote); Tenn. Code Ann. § 40-20-114(restoration of right to hold office); see also White, 808 F. Supp. at 588. Second, Tennessee law does not provide its citizens an absolute right to possess a weapon; rather, the law is one of general exclusion and limited exceptions. See generally Tenn. Code Ann. § 39-17-1301 through 39-17-1360 (1997 2000 Supp.). Cf. Cassidy, 899 F.2d at 549(firearms privileges expressly excluded from consideration as a civil right); United States v. Warin, 530 F.2d 103, 106 (6th Cir. 1976), cert. denied, 426 U.S. 948, 96 S.Ct. 3168 (1976) (no individual right to possess a firearm). If the courts of this state should interpret an ex-felon's restoration of citizenship rights to enable those persons convicted of specifically designated offenses permission to carry a handgun, the legislature's purpose in enacting such provisions would be defeated as well as be contrary to a multitude of decisions rendered by both federal and state courts addressing the same issue under similar statutes. For these reasons, I must respectfully dissent.
Tennessee law specifically exempts persons convicted of infamous offenses from ever serving on a jury. See Tenn. Code Ann. § 22-1-102 (1994); see also White, 808 F. Supp. at 588-589. There is no mention in the code provisions of any procedure for a felon to regain that right. See White, 808 F. Supp. at 589 (citing State v. Bell, 745 S.W.2d 858 (Tenn. 1988)).
See, e.g., People v. Bell, 778 P.2d 129 (Cal. 1989) (statute providing that felons cannot possess a firearm, even after receiving a certification of rehabilitation); State v. Hall, 301 N.W.2d 729 (Iowa 1981) (concluding that statute prohibiting felons from possessing firearms was applicable to the defendant despite the fact that the defendant had received a full restoration of citizenship rights before enactment of the law prohibiting felons from possessing firearms; the court noted that an express authorization to possess firearms in the restoration of citizenship would have permitted the defendant to carry a firearm); State v. Jones, 539 So.2d 866 (La.App. 1989) (concluding that despite the fact that the defendant's conviction had been set aside after probation was concluded, the conviction could be considered for the purposes of the felon in possession charge; the court noted that although the law did provide that the setting aside of the conviction had the same effect as an acquittal in other respects, the conviction could be considered a first offense for any law relating to a cumulative offense); State v. Thomas, 665 P.2d 914 (Wash. App. 1983) (holding that it was proper to use a prior conviction to prove a felon in possession charge despite the fact that all penalties and disabilities resulting from imposition of judgment and sentence had been removed, defendant's probation terminated, and his civil rights restored).